Leaked Government Amendments Published

Earlier in the week it was anticipated that draft amendments to meet the Prime Minster’s commitment in relation to students would be introduced this week.

This has clearly not occurred with media reports indicating both the Government and Opposition are blaming each other (see here and here). The media is also reporting seeing leaked copies of the proposed amendments with SBS posting a copy online.

These amendments broadly align with our understanding of the Government’s direction. They reflect a significant winding back of freedoms relating to the provision of education and a sensible, if very minimal, level of clarification around indirect discrimination.

The effect of the second of the above amendments would eliminate in its entirety the existing exemption in relation to the provision of education which currently provide that it is not unlawful –

‘for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first?mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

The removal of this provisions would make it unlawful for schools and other educational institutions to:

directly discriminate on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy

indirectly discriminate on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy unless it is ‘reasonable in the circumstances’

Indirect discrimination occurs when, broadly, you have a policy or practice that applies to all students but is argued to disproportionately impact students with a protected attribute. One of our concerns in this area relates to the teaching of a Biblical view of sexuality and sexual conduct which could be argued to constitute indirect discrimination.

The law currently gives guidance on the matters to be consider in making a determination as to whether a policy or practice is ‘reasonable in the circumstances’ which currently include –

the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

the feasibility of overcoming or mitigating the disadvantage; and

whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

The first proposed amendment above would simply add further matters to be considered by the Courts, although only in relation to primary and second schools. Contrary to claims in the media, it does not mean that any religiously based requirements are acceptable. Not only must the school have had regard to the best interests of the child in adopting any practice or policy (with no indication of whether the best interests of other students can be considered) but the Court must still consider them reasonable in the circumstances.

Advice we have received indicates that the distinction implicit in the amendments that direct and indirect discrimination can be clearly differentiated is incorrect. The value of the expanded range of factors to consider in determining reasonableness thus becomes somewhat moot. In any event, under this regime schools would carry a far greater burden to document and evidence their consideration of all these matters before they even have a chance to argue this defence. The Sex Discrimination Act 1984 (Cth) also clearly places the burden of proof of this defence on the school through section 7C.

These proposed amendments would be inadequate in providing the necessary protection for schools to operate according to their faith, values and beliefs and would create greater uncertainty for all within the school community – including students.

Once again, to be very clear, Christian schools have no desire to expel students on the grounds of sexuality orientation or gender identity. These exemptions are, however, essential to protect the religious freedoms of the school community in the absence of other protections.

We are actively involved in further discussions with the Government in relation to these proposals and will be seeking a meeting with the Shadow Attorney-General as soon as possible to raise our concerns.

All schools are asked to carefully consider the possible impacts of these changes and advise us of any practical concerns as soon as possible. Based on our initial consideration of the proposals having seen them tonight there seems to be many unintended consequences.